What do the proposed amended FRCP changes mean for in-house counsel?

In parts 1 through 5 of this series, we have summarized and described the proposed amendments to the Federal Rules of Civil Procedure (FRCP) that are intended to address electronic discovery, and to promote the early and active judicial management of cases, proportionality in discovery, and cooperation. We have discussed many of the comments that have been submitted, both in support of the proposed changes, but mostly against their adoption. Some, and maybe all, of these proposed Rules are likely to be adopted, and practitioners should be thinking now about what changes the new Rules will bring about. What will you do differently? How will this change your practice — if you typically represent plaintiffs, or individuals, or whether you typically represent defendants and large organizations?

All litigants should front-load their discovery plan

Traditionally, there were good reasons not to spend considerable time early in a case thinking about and acting on discovery. For plaintiffs, it might be time wasted if an early settlement was possible. Likewise, for defendants, if an early settlement or even dismissal without the need for discovery were possible, clients don’t want to spend resources identifying and collecting documents. Fear of spoliation sanctions and the time required to identify, collect and review electronic evidence has changed that paradigm, making early attention to discovery necessary. The proposed changes support early action.

Both parties, but perhaps especially plaintiffs, should take advantage of proposed Rule 26(d)(1) to serve early Rule 34 requests to produce. True, the discovery intentions will be revealed earlier in the case, but in how many cases, and to what extent, is discovery “strategic”? This is not a mandatory requirement, and requests that truly reveal strategy can be held in reserve. Importantly, the option of serving early requests frames the Rule 26(f) conference and puts on the table a party’s expectations regarding document production.

Similarly, proposed Rules 16(b)(3) and 26(f) now allow a scheduling order and discovery plan to provide for the preservation of electronically stored information. This is a golden opportunity for plaintiffs to state their expectations regarding what sources of electronically stored information must be preserved by a corporate defendant, and to flush out an opposing party’s claims that certain ESI is “not reasonably accessible” and therefore need not be produced. It is also a good opportunity for the large organization to stake out a reasonable position regarding preservation and manage expectations. Strong, reasonable documentation and actions at this stage of a case will support a party’s position that its conduct was reasonably and lawful, taking into account the factors set forth in proposed Rule 37(e)(2).

Anticipate challenges to scope

Both plaintiffs and defendants should anticipate considerable satellite litigation regarding whether discovery requests are “proportional.” Defendants should be expected — and be prepared — to flex their muscles in arguing that small cases mean less discovery. Yet for the plaintiff — for example, in an employment, labor or civil rights case — the amount in controversy may be small, but the discovery needed may be substantial, whether emails among many key players, structured data, or volumes of historical documents.

Plaintiffs should be thinking about discovery when they file the complaint; ditto for defendants when they answer. If discovery will be limited to the claims and defenses, as opposed to “any matter relevant to the subject matter involved in the action,” then discovery must be grounded in the language setting forth those claims and defenses.

Do you think you may need more depositions than you presumptively get under the proposed Rules? Think about that early in the case; be prepared to do some horse trading — the opposing party always has something they want and may need to trade for your additional depositions.

Proposed Rule 26(c)(1)(B) explicitly authorizes a court to enter a protective order allocating the expenses of discovery. Plaintiffs should expect the adjustments in the definition of scope, coupled with this provision, to prompt cost-sharing requests. Requests for cost-sharing will also be driven by early discussions of what must be preserved. A requesting party’s demand for broader preservation may elicit a request that production or even preservation costs be borne in part by that requester.

Insist on specific objections

“Vague, overly broad, burdensome, and not calculated to lead to the discovery of admissible evidence” is going to be a non-starter, for two important reasons. First, objections to Rule 34 requests to produce must be specific. Courts have already, even without this provision, ruled that boilerplate objections have no effect. Second, with a more restricted scope, discovery requests are objection-worthy on the basis that they do not relate to the party’s claims or defenses. Sadly, one results of the requirement of specific objections will be to keep objectors honest and eliminate the lazy practice of lodging boilerplate objections.

Sanctions are less of a threat, and more of an effort

If proposed Rule 37(e) is adopted, don’t think that there will be any less satellite litigation over preservation and sanctions. The new rule embodies a bundle of litigation opportunities, and we should expect to see a wave of Rule 37(e) litigation. Both individuals and large organizations will face the burdens of this rule. First, although the commenters complained that Rule 37(e) favors defendants and corporate litigants in that it requires that a higher standard be met before sanctions can be awarded, those producing parties must still establish that they did not fail to preserve discoverable information that should have been preserved in the anticipation or conduct of litigation”. Second, requesting parties have their work cut out for them as they prepare to litigate the five factors outlined in Rule 37(e)(2) that should be considered in assessing a producing party’s conduct. Third, both parties will have to grapple with whether the loss of information “irreparably deprived” the receiving party of any “meaningful” opportunity to litigate its case.

Conclusion

What is at present an academic exercise of thinking about and analyzing proposed changes to the Federal Rules of Civil Procedure may become a harsh reality later this year if some or all of these Rules are adopted. Practitioners — indeed, the public — have the opportunity now to consider these proposed changes and weigh in by submitting comments, whether to one revision, some, or all. Will the changes succeed in addressing the costs and burdens of discovery, especially electronic discovery? Will they make the process more fair, or cooperative? Only time, and a considerable amount of motion practice, will tell.